The Many Roads to Denial of Justice

Yesterday, the Ninth Circuit Court of Appeals ruled that a massive employment discrimination case against Wal-Mart could go forward. The dispute over the nearly decade-old case centered on whether it was appropriate for the plaintiffs to be “certified” as a class, which is necessary for the courts to proceed with the case. One of the central questions in certification is a determination as to whether a class action is the appropriate method to go about litigating the case. Wal-Mart claims that the number of plaintiffs is simply too large — over a million strong.

For more on the specifics of the case, click the link. I just want to draw attention to one of the most-neglected aspects of judicial confirmation fights — the possibility of these kind of sub rosa ways gutting regulations aimed at protecting people from powerful actors. In this case, the 9th Circuit is letting the case go forward. But one of the main things that conservatives judges do is search really hard for semi-plausible reasons to erect barriers to launching a lawsuit. Sometimes you get something like the Lilly Ledbetter case where they really overreach and prompt congress to enact a new statute that once again vindicates the purpose of the original law. But as long as the conservatives operate in a stealthier and savvier manner, it’s possible to slowly-but-surely constrict the rights of workers and consumers vis-a-vis business without ever prompting a response.

Meanwhile, the essence of the American political system is veto points. It’s very hard to create legislative change. So you might work ten years to get some employment discrimination law passed. Then suddenly some eager beavers from the federalist society chop it down, and even under the best of circumstances it could take decades to build a political coalition to put a sound law back in place. This is fundamentally what the “empathy” question in judicial confirmation is about. When you have judges who feel that rich people and corporate executives have a hard time getting a fair shake in the USA there’s an awful lot they can do to undermine efforts to secure justice for the rest of us.